United States of America v. Bates

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sandra M. Snyder on 7/24/2012 recommending that 1 IRS Summons be enforced and directing Clerk to serve Respondent at P.O. Box 25335 Fresno, CA 93729-5335. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 8/6/2012. (Lundstrom, T)

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BENJAMIN B. WAGNER
United States Attorney
YOSHINORI H. T. HIMEL #66194
Assistant United States Attorney
Eastern District of California
501 I Street, Suite 10-100
Sacramento, CA 95814-2322
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorney for Petitioner United States of America
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Petitioner,
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v.
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KENDALL O. BATES,
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Respondent.
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__________________________________ )

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1:12-cv-00701-LJO-SMS
FINDINGS AND RECOMMENDATIONS
RE: I.R.S. SUMMONS ENFORCEMENT
(Doc. 7)
ORDER DIRECTING CLERK TO
SERVE RESPONDENT BY MAIL
TAXPAYER: KENDALL O. BATES
P.O. Box 25335
Fresno, CA 93729-5335

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This matter came on regularly for hearing on July 18, 2012 at 10:00 a.m. in

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Courtroom No. 1 before the Honorable Sandra M. Snyder, United States Magistrate

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Judge, pursuant to an Order to Show Cause filed May 4, 2012 (Doc. 4). Respondent,

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Kendall O. Bates, did not appear nor file written opposition to the verified petition filed

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May 1, 2012 (Doc. 1). Assistant United States Attorney Benjamin E. Hall appeared, in

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the place and instead of Assistant United States Attorney Yoshinori T. Himel, on behalf

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of Petitioner. Internal Revenue Service Investigating Revenue Officer Lorena Ramos

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also appeared.

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The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks

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to enforce an administrative summons (Exhibit A to the petition) issued August 5, 2011,

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to secure payment of assessed income tax liabilities for Respondent, Kendall O. Bates, for

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the tax years ending December 31, 2000, December 31, 2001, December 31, 2003,

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December 31, 2004, December 31, 2005, and December 31, 2006.

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Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and

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found to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the Government

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to bring this action. The Order to Show Cause shifted the burden to Respondent of

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rebutting any of the four (4) requirements of United States v. Powell, 379 U.S. 48, 57-58

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(1964).

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This Court has reviewed the verified petition and the documents filed in support
thereof. On the summons enforcement merits, based on the uncontroverted verification of
the petition by Revenue Officer Ramos and the entire record, the Court finds as follows:
(1)

The summons issued to Respondent, Kendall O. Bates, by Revenue Officer

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Lorena Ramos on August 5, 2011, seeking testimony and production of documents and

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records in Respondent’s possession, was issued in good faith and for a legitimate purpose

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under I.R.C. § 7602, that is, to secure payment of assessed income tax liabilities for

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Respondent, Kendall O. Bates, for the tax years ending December 31, 2000,

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December 31, 2001, December 31, 2003, December 31, 2004, December 31, 2005, and

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December 31, 2006.

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(2)

The information sought is relevant for that purpose.

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(3)

The information sought is not already in the possession of the Internal

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Revenue Service.

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(4)

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followed.

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(5)

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The administrative steps required by the Internal Revenue Code have been

There is no evidence of referral of this case by the Internal Revenue Service

to the Department of Justice for criminal prosecution.
(6)

The verified petition and its exhibits make a prima facie showing of

satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).
(7)

The burden shifted to Respondent, Kendall O. Bates, to rebut the prima

facie showing.

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(8)

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Respondent has presented no argument or evidence to rebut the prima facie

showing.

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Therefore, it is HEREBY RECOMMENDED that:

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(1)

The IRS summons issued to Respondent, Kendall O. Bates, be enforced;

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(2)

Respondent, Kendall O. Bates, be ordered to appear at the I.R.S. offices at

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2525 Capitol Street, Suite 206, Fresno, CA, 93721-2227, before Revenue Officer Lorena

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Ramos, or her designated representative, on the twenty-first (21st) day after the filing date

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of the District Judge's summons enforcement order, or at a later date to be set, in writing,

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by Revenue Officer Ramos, then and there to be sworn, to give testimony, and to produce

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for examining and copying the books, checks, records, papers, and other data demanded

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by the summons, the examination to continue from day to day until completed; and,
(3)

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If the Court enforces the summons, the Court shall retain jurisdiction to

enforce its order by its contempt power.
These findings and recommendations are submitted to the United States District

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Judge assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the

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Local Rules of the United States District Court for the Eastern District of California.

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Within ten (10) days after being served with these findings and recommendations, any

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party may file written objections with the court and serve a copy on all parties. Such a

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document should be titled "Objections to Magistrate Judge's Findings and

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Recommendations." Any reply to the objections shall be filed and served within ten (10)

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days after service of the objections. The District Judge will then review these findings

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and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the

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District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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The Clerk is DIRECTED to serve Respondent, Kendall O. Bates, P.O. Box 25335,
Fresno, CA, 93729-5335.

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IT IS SO ORDERED.

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Dated:
icido3

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July 24, 2012

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE